JUDGMENT : Pradeep Kumar Srivastava, J. 1. Heard Mr. Shubham Sinha, learned Amicus Curiae for the appellants and Mrs. Vandana Bharti, learned A.P.P. for the State. 2. It is here to be mentioned at the very outset that during pendency of this criminal appeal, appellant no. 1 namely, Munshi Manjhi has died and vide order dated 22.04.2025, the appeal on behalf of appellant no. 1 Munshi Manjhi was abated. Now, the appeal is being heard only on behalf of alive appellants namely, appellant no. 2 Giris Manjhi ( who is now re- numbered as appellant no. 1 ) and appellant no. 3 Wakil Manjhi ( who is now re-numbered as appellant no. 2 ). 3. The instant criminal appeal has been preferred by the appellants against judgment of conviction and sentence dated 23.11.2002 passed by learned Additional District & Sessions Judge, 1st, Fast Track Court, Giridih in S.T. No. 193 of 1992 / T.R. No. 32 of 2002, whereby and whereunder, the appellant no. 1 has been convicted for the offence under Section 147 of the I.P.C. and the appellant nos. 2 and 3 have been convicted for the offence under Section 148 of the I.P.C. and all the appellants have been further convicted under Section 302 read with Section 149 and 307 of the I.P.C. and have been sentenced to undergo R.I. for life for the offence under Section 302 / 149 of the I.P.C. They have been further sentenced to undergo R.I. for 7 years for the offence under Section 307 / 149 of the I.P.C. Appellant no. 1 has further been sentenced to undergo R.I. for 6 months for the offence under Section 147 of the I.P.C. and appellant nos. 2 and 3 have been further sentenced to undergo R.I. for one year for the offence under Section 148 of the I.P.C. All the sentences were directed to run concurrently. FACTUAL MATRIX 4. The factual matrix giving rise to this appeal as per written report of informant Rameshwar Tudu (P.W.-1) is that on 13.12.1987 at about 12 hours, the informant along with his brother Roopan Tudu went to his paddy field and saw that Hopna Manjhi, Munshi Manjhi, Wakil Manjhi and Giris Manjhi were harvesting paddy crops. The informant and his brother asked the accused persons first to partition the field then they will be allowed to harvest the paddy crops. The informant and his brother asked the accused persons first to partition the field then they will be allowed to harvest the paddy crops. Upon this, all the above accused persons and 10-12 other associates, who were also present there, armed with dangerous weapons like lathi, farsa, tangi, bow & arrow surrounded the informant and his brother from four corners. It is further alleged that Hopna Manjhi gave a farsa blow on the head of informant with intention to kill him due to which, he fell down, Munshi Manjhi assaulted him by lathi on left hand, Wakil Manjhi gave tangi blow on right hand and Giris Manjhi gave a tangi blow on left back side. It is further alleged that above accused persons also assaulted to informant’s brother Roopan Tudu by their respective arms like farsa, tangi and lathi, due to which, he received severe injuries and died on the spot. The informant raised alarm, then several villagers assembled there and have seen the occurrence. 5. On the basis of above information, FIR being Ahilyapur P.S. Case No. 43/1987 dated 13.12.1987 was registered for the offence under Sections 147 , 148, 149, 341, 323, 324, 307 & 302 of the I.P.C. against the above named four accused persons along with 10 -12 others. 6. After completion of investigation, charge sheet was submitted against the four accused persons / appellants for the aforesaid offences. There is no indication in the charge sheet about continuation of investigation against any unknown miscreants. After taking cognizance of offence by the concerned Magistrate, the case was committed to the court of Sessions, where Sessions Trial No. 193/1992 was registered. 7. After submission of charge sheet, accused Hopna Manjhi had died, therefore, charges have been framed only against three accused persons namely, Wakil Manjhi, Giris Manjhi and Munshi Manjhi for the offence under Section 302 /149 of the I.P.C. and 307/149 of the I.P.C. A separate charge for the offence under Section 147 of the I.P.C. was framed against Munshi Manjhi and for the offence under Section 148 of the I.P.C. against Wakil Manjhi and Giris Manjhi. The accused persons pleaded not guilty and claimed to be tried. 8. In course of trial, altogether 10 witnesses were examined by the prosecution. P.W.-1 : Rameshwar Tudu. P.W.-2 : Bodni Manjhiyaeen. P.W.-3 : Md. Rauf. P.W.-4 : Dr. Suresh Bramhachari. P.W.-5 : Mahapool Majhiyan. P.W.-6 : Dipisar Murmu. The accused persons pleaded not guilty and claimed to be tried. 8. In course of trial, altogether 10 witnesses were examined by the prosecution. P.W.-1 : Rameshwar Tudu. P.W.-2 : Bodni Manjhiyaeen. P.W.-3 : Md. Rauf. P.W.-4 : Dr. Suresh Bramhachari. P.W.-5 : Mahapool Majhiyan. P.W.-6 : Dipisar Murmu. P.W.-7 : Lakhi Ram Murmu. P.W.-8 : Baldeo Yadav. P.W.-9 : Lallu Prasad. P.W.-10 : Mahadeo Mahto. Apart from oral testimony of witnesses, following documentary evidences have been adduced by prosecution:- Exhibit-1 Signature of witness Rameshwar Tudu on written report. Exhibit-1/1 Endorsement on Written Report. Exhibit-2 F.I.R. Exhibit-3 P.M. Report. Exhibit-4 to 4/2 Signature of Lakhi Ram Murmu on three seizure list. Exhibit-4/3 to 4/6 Seizure list. Exhibit-5 Injury Report. Exhibit-6 Case Diary. 9. On the other hand, no oral or documentary evidence has been adduced on behalf of the defence. The case of defence is denial from the occurrence and false implication. 10. After conclusion of trial, the impugned judgment and order was passed, which has been assailed in this appeal. 11. Learned Amicus Curiae has strenuously argued that the learned trial court has miserably failed to appreciate that the place of occurrence, which is alleged to be paddy field, where appellants were harvesting paddy crops, is a joint property of the parties. The paddy crops were grown by the appellants over the lands allotted under amicable settlement for cultivation to the appellants. It is clear cut case of the prosecution that only four appellants were harvesting the paddy crops, which was protested by the informant and his brother namely, Roopan Tudu (deceased). The incident took place in a sudden manner over hot exchange of abusive words by the parties. There is no whisper in the entire evidence of the witnesses about 10-12 persons, who were also joined in the incident and how they have participated in commission of the alleged offence. Whether these persons were outsiders or local villagers or family members of the accused persons, has also not been explained by the prosecution. The Investigating Officer has simply submitted the charge sheet against four named accused persons without making any comments as regards continuation of investigation against unknown miscreants and dropped the further investigation and submitted charge sheet. 12. Whether these persons were outsiders or local villagers or family members of the accused persons, has also not been explained by the prosecution. The Investigating Officer has simply submitted the charge sheet against four named accused persons without making any comments as regards continuation of investigation against unknown miscreants and dropped the further investigation and submitted charge sheet. 12. The prosecution has also failed to prove as to what was common object within the meaning of Section 141 of I.P.C. (corresponding to Section 189 of BNS), in prosecution of which, the occurrence took place. The prosecution has also not brought on record that the landed property was joint property of the parties. It is also not alleged by the informant, who is the sole eye- witness that the paddy crops were grown by him and his family members, therefore, mere four persons present and participating in a sudden scuffle cannot be categorize as forming unlawful assembly as defined under Section 141 of the I.P.C. (Section 189 of BNS). 13. The learned trial court has mis-directed towards the application of legal provision in the instant case, at the very initial stage of framing charges against accused persons. In absence of any material constituting unlawful assembly by the accused persons, no charge under Sections 147 / 148 / 149 of the I.P.C. can be framed and the accused persons cannot be held guilty with the aid of Section 149 of the I.P.C. 14. It is further submitted that the deadly assault given to Roopan Tudu is only against Hopna Manjhi and Munshi Manjhi (since dead) and as per F.I.R. and evidence of informant, there is allegation of assault by tangi against the appellants namely, Giris Manjhi and Wakil Manjhi on non-vital part of the body like hand and back to the informant only. The injuries sustained by the informant and the attending circumstances don’t warrant the constitution of offence under Section 307 of the I.P.C. also against the appellants. 15. It is further submitted that in the factual background of the case, since there was no common intention or any common object to inflict injury to the informant with intention to kill him, therefore, the appellants may be held guilty for their individual act alone and principles of constructive liability is not applicable at all. 16. 15. It is further submitted that in the factual background of the case, since there was no common intention or any common object to inflict injury to the informant with intention to kill him, therefore, the appellants may be held guilty for their individual act alone and principles of constructive liability is not applicable at all. 16. It is further submitted that there is no iota of evidence showing any overt act of the appellants for causing any injury to Roopan Tudu (since deceased) as deposed by sole eye-witness Rameshwar Tudu (P.W.-1) informant-cum-injured. The injury report of informant (Exhibit-5) has been proved by Advocate Clerk and the concerned Dr. S.P. Burnwal has not been examined. Therefore, the said injury report has no legal sanctity. However, the Exhibit-5 shows three wounds sustained by informant out of which Injury No. (i) was grievous caused by lathi and Injury No. (ii) & (iii) caused by sharp cutting weapon and simple in nature. 17. It is further submitted that none of the above injuries has been attributed against the present appellants, therefore, the appellants are innocent and have been falsely implicated in this case. The learned trial court while appreciating the evidence available on record against the appellants has committed serious error of law and arrived at wrong conclusion about guilt of appellants. Therefore, the impugned judgment of conviction and sentence of the present appellants is liable to be set aside and appellants deserve to be acquitted from the charges leveled against them. This appeal has merits and fit to be allowed. 18. In the alternative, it is submitted that the totality of circumstances disclose commission of offence under Section 324 of the I.P.C. by the present appellants. It was first offence of the appellants. The learned trial court has failed to extend the benefit of Section 3 / 4 of the Probation of Offenders Act to the appellants, which they deserve. 19. On the other hand, learned A.P.P. appearing for the State has vehemently opposed the contentions raised on behalf of the appellants and defending the impugned judgment has submitted that the learned trial court has very wisely and aptly taken into consideration the over all aspects of the case and unrebutted testimony of the injured informant (P.W.- 1). There is direct and specific allegation against the appellants of assault by deadly weapons. There is direct and specific allegation against the appellants of assault by deadly weapons. Therefore, the impugned judgment suffers from no error of law calling for any interference by way of this appeal, which is fit to be dismissed. 20. On the basis of points of arguments of the respective parties, the sole point emerges for determination in this appeal is as to “whether the impugned judgment of conviction and sentence of appellants suffers from serious error of law and liable to be set aside?” 21. Before imparting verdict on above point, we have to apprise the evidence available on record. 22. The prosecution has examined altogether 10 witnesses to substantiate the charges leveled against the accused persons. It appears that sole eye-witness of the occurrence is informant–cum-injured namely, Rameshwar Tudu (P.W.-1) . According to his evidence, on 13.12.1987 at about 12 hours, he along with his brother Roopan Tudu went to see his paddy field, where Wakil Manjhi, Giris Manjhi, Hopna Manjhi and Munshi Manjhi were harvesting the paddy crops in his field. This witness and his brother forbid the accused persons from harvesting the paddy crops unless the field is partitioned. Upon this, Giris Manjhi and Wakil Manjhi assaulted to Roopan Tudu by tangi and Munshi Manjhi by lathi and Hopna Manjhi (since deceased) by farsa to Roopan Tudu. Roopan Tudu died at the spot. Thereafter, Wakil Manjhi and Giris Manjhi assaulted informant by tangi and Munshi Manjhi by lathi on head with intention to kill him. He lodged FIR of this case and has proved the signature on the written report marked as Exhibit-1. In his cross-examination he also admits that he remained in Hospital for two days and got his treatment. There were injuries on his head, hand and back. The head injury was caused by lathi and other injuries were inflicted by tangi. . 23. P.W.-2 Bodni Manjhiyaeen. She is the wife of the informant. She went to the field after hearing hulla. She has not seen the occurrence. She immediately went at the place of occurrence and saw her husband in injured condition and bhaisur was lying dead in the injured condition. 24. P.W.-3 Md. Rauf is a formal witness and has proved the formal F.I.R. as Exhibit-2. P.W.-8 Baldeo Yadav is a formal witness, who has proved the injury report as Exhibit-5 . She immediately went at the place of occurrence and saw her husband in injured condition and bhaisur was lying dead in the injured condition. 24. P.W.-3 Md. Rauf is a formal witness and has proved the formal F.I.R. as Exhibit-2. P.W.-8 Baldeo Yadav is a formal witness, who has proved the injury report as Exhibit-5 . P.W.-9 Lallan Prasad is also a formal witness and has proved the endorsement on the written report as Exhibit-1/1. P.W.-10 Mahadeo Mahto is a formal witness and has proved the seizure list Exhibit-4/3, 4/4, 4/5 and 4/6 and also proved the case diary as Exhibit-6. 25. P.W.-4 Dr. Suresh Bramhachari has conducted autopsy on the dead body of the deceased Roopun Tudu, aged 36 years, Son of Lotho Tudu of Village – Sagarbhanga, P.S. – Ahilyapur, Dist-Giridih, who was brought and identified by Havaldar Shivajee Singh and Chowkidar 2/9 Baijnath Mandal. This witness has found following ante mortem injuries on the person:- (i) An incised wound 3” x ½” x deep up to the bone over right parietal area of skull. (ii) An incised wound 4” x ½” x deep up to the bone with cutting of bone and meninges over left of occipital temporal area of skull. (iii) A hematoma over the forehead. 1 ½ x 1” over left forehead. (iv) A hematoma 3” x 2” over right arm. On dissection, fracture of left temporal occipital bone with clean margin and adjoining hematoma. Meninges were cut, brain matter intact and cranial cavity full of blood. Trachea – NAD, Lungs – Pale, Heart – Both side empty. Liver, Spleen, Kidney – Pale. Stomach contain – partially digested food its mucosa – NAD. Urinary bladder – Empty. This witness has opined that the cause of death is due to shock and hemorrhage due to above mentioned ante-mortem injury caused by sharp cutting weapon may be farsa or tangi. Injury Nos. (iii) & (iv) my be caused by lathi. Time elapsed since death 24 to 30 hours till P.M. examination. This witness has identified the post-mortem report and his signature on P.M. report, which is marked as Exhibit-3. 26. P.W.-5 Mahapul Manjhiain is the wife of the deceased Roopan Tudu. Injury Nos. (iii) & (iv) my be caused by lathi. Time elapsed since death 24 to 30 hours till P.M. examination. This witness has identified the post-mortem report and his signature on P.M. report, which is marked as Exhibit-3. 26. P.W.-5 Mahapul Manjhiain is the wife of the deceased Roopan Tudu. Admittedly, at the time of occurrence, she was at her house and on hearing about the occurrence, she went to the paddy field and saw that her husband was lying dead sustained cut injuries on his head, hand and back. Her husband was assaulted by farsa on his head by Hopna Manjhi and her brother-in-law was assaulted by tangi on his hand and back by Giris Manjhi, Wakil Manjhi and Munshi Manjhi assaulted by lathi. Police also arrived at the place of occurrence and her statement was recorded. 27. P.W.-6 Dipisar Murmu . He is also not eye-witness of the occurrence, rather after hearing hulla, he went to the place of occurrence and saw the dead body of Roopan Tudu and injured Rameshwar Tudu, who narrated about the occurrence to him. 28. P.W.-7 Lakhi Ram Murmu also arrived at the place of occurrence after hearing hulla raised by Rameshwar Tudu (P.W.-1). He came to know about the occurrence from the Rameshwar Tudu. Police also arrived at the place of occurrence, where seizure list was prepared and he has signed the three seizure lists marked Exhibit-4, 4/1 & 4/2. 29. On meticulous examination of the evidence of sole eye-witness-cum-informant namely, Rameshwar Tudu, it is crystal clear that neither in written report nor in deposition during trial, he has been able to disclose the name of other 10-12 persons involved in this case, although the Investigating Officer has not been examined by the prosecution, but it is apparent that charge sheet was submitted against only four named accused persons, out of them, one Hopna Manjhi, who was the main assailant of Roopan Tudu inflicted injuries by farsa (spade) died during trial. The Investigating Officer has submitted the final charge sheet in this case without continuing investigation against the other unknown persons. The learned trial court while framing the charge against the accused persons has also not whispered the presence of any other accused persons in commission of the offence so that number may exceed 5 or more. The Investigating Officer has submitted the final charge sheet in this case without continuing investigation against the other unknown persons. The learned trial court while framing the charge against the accused persons has also not whispered the presence of any other accused persons in commission of the offence so that number may exceed 5 or more. It is also not mention in the charge itself as to how there was unlawful assembly and what was the common object of the said unlawful assembly. The genesis of the occurrence is disputed regarding partition of landed property and harvesting of paddy crops by the accused persons, which was protested by the informant party simply on the ground unless partition is affected, they will not allow to harvest the paddy crops. Thereafter, suddenly exchange of assault ensued between the parties. Since the prosecution has miserably failed to prove the number of accused persons exceeding 5 or more, therefore, it cannot be held that the accused persons were constituting an unlawful assembly under Section 141 of the I.P.C. as extracted hereinbelow:-. 141. Unlawful Assembly. - An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is- First. - To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second. - To resist the execution of any law, or of any legal process; or Third. - To commit any mischief or criminal trespass, or other offence; or Fourth. - By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth. - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation – An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. 30. - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation – An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. 30. Upon scrutinization of evidence of the informant, who is the sole eye witness (P.W.-1) and wife of the deceased (P.W.-5), it is crystal clear that the deceased Roopan Tudu was assaulted by Hopna Manjhi giving farsa blow. There is no specific evidence that other accused persons have also assaulted to Roopan Tudu. This fact further finds corroboration from the evidence of P.W.-5 Doctor, who conducted post-mortem examination on the dead body of the deceased Roopan Tudu, had categorically opined that there were two incised wounds caused by farsa or tangi. The evidence of eye witnesses also supports the injuries caused by farsa inflicted by Hopna Manjhi, therefore, the infliction of injuries by present appellants Wakil Manjhi and Giris Manjhi by tangi to the deceased as stated by P.W.-1 in his evidence cannot be believed. The FIR is also mum on the point of any overt act of the present appellants Wakil Manjhi and Giris Manjhi for causing tangi blow injury to deceased Roopan Tudu, therefore, we are of the firm view that in commission of murder of the deceased, there is no role of present appellants Giris Manjhi and Wakil Manjhi. 31. So far role of present appellants Giris Manjhi and Wakil Manjhi in causing injuries by tangi to the informant, Rameshwar Tudu is concerned, there is direct evidence of the informant that there was assault by tangi on his hand and back by the present appellants, which also finds corroboration from injury report (Exhibit-5). Both the injuries caused by sharp cutting weapon opined to be simple in nature. Therefore, present appellants are liable for voluntarily causing simple injury through sharp cutting weapon to the informant Rameshwar Tudu attracting the offence under Section 324 of the I.P.C. 32. Both the injuries caused by sharp cutting weapon opined to be simple in nature. Therefore, present appellants are liable for voluntarily causing simple injury through sharp cutting weapon to the informant Rameshwar Tudu attracting the offence under Section 324 of the I.P.C. 32. In view of above discussion and reasons, we are of the firm view that the appellants deserve acquittal from the charges for the offence under Sections 147 , 148, 302 read with Section 149 and 307 of the I.P.C. Accordingly, their conviction and sentence for the offence under Sections 147 , 148, 302 read with Section 149 and 307 of the I.P.C. is hereby set aside. The appellants Giris Manjhi and Wakil Manjhi are held guilty for commission of offence under Section 324 of the I.P.C. 33. So far as sentence is concerned, it appears that appellants have remained in custody for substantial period of imprisonment for about 5 months and 08 days, therefore, considering the facts and circumstances of the case, nature of offence committed by the appellants, age, character and antecedent, this Court deems fit to reduce the sentence of the appellants. Therefore, instead of undergoing substantive sentence of imprisonment for the offence under Section 324 of the I.P.C., the sentence of appellants is reduced to the imprisonment already undergone by them. 34. Accordingly, this appeal is dismissed with modification in judgment of conviction and sentence of appellants to the extent mentioned above 35. Pending I.A., if any, stand disposed of. 36. We take this opportunity to appreciate the assistance rendered by Mr. Shubham Sinha, learned Amicus Curiae and direct the Member Secretary, High Court Legal Services Committee to process the fees of Rs. 7,500/- (Rupees Seven Thousand Five Hundred only) to Mr. Shubham Sinha within a period of four weeks from the date of receipt / production of a copy of this order. 37. Office is directed to ensure that a copy of this order is served upon Member Secretary, High Court Legal Services Committee. 38. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.